Jammu & Kashmir High Court
Mohd. Hussain vs Ut Of Jammu & Kashmir Through on 11 August, 2025
Serial No. 92
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 07.08.2025
Pronounced on: 11.08.2025
HCP No. 07/2025
Mohd. Hussain, Age 64 years .....Petitioner(s)
S/O Shah Mohd.R/O Shahpur,
Tehsil Haveli,District Poonch
Through Son Waqar Younis
Through: Mr. Sanchit Verma, Advocate.
Vs
1. UT of Jammu & Kashmir through
Commissioner/Secretary, (Home),
Civil Secretariat, Jammu/Srinagar.
2. District Magistrate, Poonch.
3. Senior Superintendent of Police,
Poonch.
4. Superintendent, Central Jail, Jammu.
..... Respondent(s)
Through: Mr. Dewakar Sharma, Dy. AG.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Petitioner-Mohd. Hussain, S/O Shah Mohd. R/O Shahpur, Tehsil
Haveli, District Poonch (for short „the detenue‟) challenged the detention Order
No.DMP/PSA/24 of 2024 dated 13.11.2024 (impugned order), issued by
respondent No.2, District Magistrate, Poonch (hereinafter to be referred as „the
detaining authority‟), whereby he has been placed under preventive detention, in
order to prevent him from acting in any manner prejudicial and detrimental to
the „security of the State‟.
02. Petitioner contends that the Detaining Authority passed the impugned
detention order without there being any compelling circumstances; that the
detaining authority has not informed the detenue about his right to file
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representation and also the time frame within which such a representation must
be filed to the detaining authority as well as government against his detention
order, and that whole of the material forming the basis of the grounds of
detention was not furnished to the detenue which incapacitated him to file
effective representation against his detention order. Lastly, it has been contended
that on 30.12.2024, the detenue through his son, had made a representation
before respondent no.1, but the same has neither been considered nor the result
of the same communicated to the detenue, as reply filed on behalf of the
respondents is also conspicuously silent vis-à-vis representation of the detenue.
03. The respondents have contested the writ petition by filing counter
affidavit of the detaining authority. In the counter affidavit, it has been
submitted that the impugned order of detention has been passed by the detaining
authority after carefully analyzing the dossier dated 04.11.2024 submitted by
SSP Poonch; that the detention order is based on subjective satisfaction of the
detaining authority and the grounds of detention clearly reflect the application of
mind; that the detaining authority was satisfied that the activities of the detenue
were prejudicial to the security of the State and that there was every likelihood
of the detenue continuing with such activities even if released on bail; that the
respondents have supplied all the material to the detenue and have also read out
and explained the contents thereof in the language he understands; that he was
also informed about his right to make a representation to the Government as
well as detaining authority; that the representation filed on behalf of the detenue
was duly considered and result whereof communicated to the petitioner through
jail authorities; that the respondents, in order to lend support to their contentions,
have produced the detention record.
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04. Heard leaned counsel for the parties at length, perused the record and
considered the matter.
05. The detention record, as produced, reveals that the detenue was involved
in following cases registered at Police Sttion Poonch:-
1) FIR No. 212/1991 U/Sec 2/3 E&IMCO
2) FIR No. 124/1992 U/Sec 2/3 E&IMCO
Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority, while passing impugned detention order.
06. Although detenue has raised many grounds for assailing the impugned
order of detention, yet, during the course of arguments, his counsel restricted his
arguments to the contentions that:
i) That detenue was not informed about his right to make effective and
meaningful representation, as there is no mention of time in the detention
order, within which, he can make representation;
ii) Representation of the detenue against the impugned order of detention,
though filed, was not considered by the respondents, nor its result
conveyed to the detenue, thereby violating his statutory and
constitutional rights;
iii) That whole of the material, contents of the detention warrant as well as
grounds of detention were not provided and explained to the detenue in
the language he understands;
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iv) That the grounds of detention are replica of police dossier.
07. First ground as argued is, that the detenue was not informed about his
right to make representation within stipulated time before the detaining authority
as well as government, thereby violating his statutory and constitutional rights.
It is translucently clear from perusal of the impugned detention order that the
Detaining Authority has not communicated to the detenue the time limit, within
which, he could make a representation to it, till approval of the detention order
by the Government. In a case of National Security Act, titled “Jitendra Vs.
Dist. Magistrate, Barabanki & Ors.”, reported as 2004 Cri.L.J 2967, the
Division Bench of Hon‟ble Allahabad High Court, has held:-
“10. We make no bones in observing that a partial communication
of a right (in the grounds of detention) of the type in the
instant case, wherein the time limit for making a
representation is of essence and is not communicated in the
grounds of detention, would vitiate the right fundamental right
guaranteed to the detenue under Article 22(5) of the
Constitution of India, namely, of being communicated, as soon
as may be the grounds of detention.”
08. Since the detenue‟s right to make a representation to the detaining
authority was only available to him till approval of detention order by the
Government, it follows as a logical imperative that the detaining authority
should have communicated to the detenue in the detention order, the time limit,
within which, he could make a representation to it i.e., till the approval of the
detention order by the State Government. There is, therefore, force in the above
argument of the detenue. On this count alone, the impugned detention order
cannot sustain and is liable to be quashed.
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09. The second ground was that representation of the detention was neither
considered nor result whereof conveyed to the detenue. The respondent no.2, in
his counter affidavit, nothing was stated about representation from the detenue,
yet the record produced by the respondents would reveal that vide
communication dated 06.02.2025 by the Government addressed to District
Magistrate, Poonch with copy to the Superintendent Central Jail, Jammu,
detaining authority, with request to inform the detenue about disposal of his
representation. The respondents, in order to substantiate their claim that they
informed the detenue of the decision of the representation, ought to have filed an
affidavit to that effect, since detenue has all along denied any receipt or
information about the outcome of the representation, however, the such affidavit
is conspicuously absent and, what the respondents have placed on record is
communication dated 06.02.2025 (supra) on which it is alleged that detenue has
put his signatures. Even if it is assumed that, the representation filed on
30.11.2024 was considered by the government, after 65 days of its filing, there
is inordinate and unexplained delay in consideration of the representation which
is ought to be considered at the earliest. This slackness on the part of
respondents to take a decision on the representation of the detenue also vitiates
the impugned order of detention.
10. The next ground that whole of the material, contents of the detention
warrant as well as grounds of detention were neither provided nor explained to
the detenue in the language he understands is concerned, the respondents, in
order to vindicate their claim that they have duly supplied the whole material
including detention warrant and grounds of detention to the detenue and
explained the same in the language he understands, has drawn attention of this
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court to record, more particularly, execution report of the executing officer, PSI
Suman Sharma of P/S Poonch executing detention order No. DMP/PSA/24 of
2024 dated 13.11.2024, receipt of grounds of detention. In order to substantiate
their claim, an affidavit is also placed on record. The said affidavit is reproduced
hereinbelow for ready reference:
“Affidavit
I, Insp. Kunal Singh Jamwal, SHO PS Poonch PID No.EXJ.109574
presently posted at Station House Office Poonch, District Poonch, do hereby
solemnly affirm and declare as under:-
1. In compliance to District Mobile Magistrate Poonch, Order
No.DMP/PSA/24 of 2024 dated 18.11.2024 has been taken into the
custody of detenue Namely Mohd. Hussain S/O Shah Mohd R/O
Shahpur Tehsil Haveli District Poonch on 18.11.2024 for execution of
detention warrant at District Jail Pooch today on 18.11.2024. The
contents of the detention warrant as well as grounds of detention has
been read over in English and explained to him in Urdu languages
which he understood fully in token of which his signatures has been
obtained below at mark “A”. Moreover a copy of detention warrant 01
leaf, and other grounds of detention 04 leaves, Dossier 04 leaves,
notice of detention 01 leaf and other relevant record 14 leaves, total 24
leaves has been handed over to him and also informed to him that he
can make representation to the Govt. as well as detaining authority
against the detention order, if he so desire.
2. That the averment made herein above is true to the knowledge and
belief of the deponent and that nothing has been concealed there from.
Sd/-
Deponent.
Verification:-
Verified at Poonch today on 21.11.2024 that the contents of the affidavit
are true and correct to the best of my knowledge and belief and nothing has
been concealed as therein.”
11. The execution of the warrant of detention is also doubtful, as to who has
executed the same- whether by PSI Suman Sharma whose execution note states
that warranted was executed by him at Central Jail, Jammu or whether by
Inspector Kunal Sharma who deposed on affidavit that he executed the warrant
on 18.11.2024, at District Jail Poonch, on the day when impugned order was
passed by the District Magistrate. The contradictory claims of the execution of
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the warrant by two Police officers, further compounds the veracity of the service
of the material to the detenue, affecting his constitutional/legal rights. This
aspect of the matter also vitiates the impugned order.
12. The last ground, which has been urged by the learned counsel for the
detenue is that the Detaining Authority while formulating the grounds of
detention has failed to apply its mind, inasmuch as the grounds of detention are
almost xerox copy of the police dossier. A perusal of grounds of detention and
the police dossier reveals that the language and expressions used in both the
documents are almost similar to each other with intermixing of words here and
there. This clearly shows that the detaining authority has acted in a mechanical
manner. The Supreme Court has, in the case of Jai Singh and others vs. State
of Jammu and Kashmir, (1985) 1 Supreme Court Cases 561 clearly stated
that where the grounds of detention are verbatim reproduction of the dossier
submitted by the police, it goes on to show that there is non-application of mind
on the part of the detaining authority. In Rajesh Vashdev Adnani vs. State of
Maharashtra and others, (2005) 8 SCC 390, the Supreme Court again
reiterated that where the detention order is verbatim reproduction of the police
dossier, the said order suffers from non-application of mind on the part of the
Detaining Authority.
13. The material placed before the detaining authority by the Police was his
alleged involvement in two criminal cases, registered against the detenue at
Police Station Poonch in the years 1991 and 1992, with regard to crossing of the
LoC, in which he was convicted by the court of learned Chief Judicial
Magistrate, taking a lenient view, having consideration of the facts and
circumstances. The reliance on the 35 years old cases in the year 2024 to pass
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impugned order is not permissible being stale, snapping proximate and live link.
(See: Sama Aruna v. State of Telangana & Ors (2018) 12 SCC 150).
14. In the face of the aforestated legal position, it can safely be stated that
the detaining authority in the instant case has acted in a mechanical manner
while passing the impugned order of detention rendering it unsustainable in law.
15. Personal liberty is one of the most cherished freedoms, perhaps more
important that the other freedoms guaranteed under the Constitution. It was for
this reason that the Founding Fathers enacted the safeguards in Article 22 in the
Constitution so as to limit the power of the State to detain a person without trial,
which may otherwise pass the test of Article 21, by humanizing the harsh
authority over individual liberty. In a democracy governed by the rule of law,
the drastic power to detain a person without trial for „security of the State‟
and/or „maintenance of public order‟ must be strictly construed. However, where
individual liberty comes into conflict with the interest of the security of the State
or public order, then the liberty of the individual must give way to the larger
interest of the nation. The Hon‟ble Apex Court in Smt. Icchu Devi Choraria v.
Union of India & Ors. (AIR 1980 SC 1983) held as under:
“The court has always regarded personal liberty as the most
precious possession of mankind and refused to tolerate illegal
detention, regardless of the social cost involved in the release of a
possible renegade.
This is an area where the court has been most strict and
scrupulous in ensuring observance with the requirements of the
law, and even where a requirement of the law is breached in the
slightest measure, the court has not hesitated to strike down the
order of detention or to direct the release of the detenue even
though the detention may have been valid till the breach
occurred.”
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16. Having regard to the facts, firstly, that not informing the detenue that
he can make representation to the detaining authority, against the detention order
to the extent that time frame is not specified in the detention order; within which
detenue can file representation against the detention order and secondly,
decision of the representation, though filed, not intimated to the detenue; thirdly,
non application of mind by the detaining authority, in as much as the grounds of
detention are almost xerox copy of the police dossier, and fourthly,
contradictory report with regard to the execution of the detention warrant
inasmuch as execution report would show that PSI Suman Sharma, P/S Poonch
executed the detention order dated 13.11.2024 upon detenue at Central Jail,
Jammu on 18.11.2024, whereas affidavit sworn in this behalf by Inspector
Kunal Singh Jamwal, SHO P/S Poonch, deposed that the detention order dated
18.11.2024 was executed by him on the detenue at District Jail Poonch on
18.11.2024 itself, it can safely be held that the detenue was disabled to exercise
his right to file a representation against his detention, in terms of Article 22(5) of
the Constitution of India; that the detaining authority has passed the impugned
detention order arbitrarily and mechanically, without application of mind and
the constitutional and statutory safeguards available to the detenue were also
observed in breach and trampled, vitiating the impugned detention order, which
render it unsustainable and liable to be quashed.
17. Viewed thus, the petition is allowed and the impugned detention
Order No.DMP/PSA24 of 2024 dated 13.11.2024, passed by respondent No. 2,
District Magistrate, Poonch, is hereby quashed. The detenue-Mohd Hussain
S/O Shah Mohd, R/O Shahpur, Tehsil Haveli, District Poonch, is directed to be
released from the preventive custody forthwith, if not required in any other
case(s). No costs.
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18. The record of detention be returned to the respondents through their
counsel.
19. Disposed of, accordingly, along with connected application(s).
(M A CHOWDHARY)
JUDGE
JAMMU
11.08.2025
Raj Kumar
Whether the order is speaking? :Yes/No.
Whether the order is reportable? : Yes/No.
Raj Kumar
2025.08.11 17:42
I attest to the accuracy and
integrity of this document